59 So. 683 | Ala. Ct. App. | 1912
1. The appellee, desiring tq/háve 250 crates of oranges, weighing 80 pounds each, of id the aggregate 20,000 pounds, shipped to him from Orlando, Fla., to Greenville, Ala., applied to the general freight agent of the appellant for information as to the freight rates on said oranges from Orlando to Green-ville. The general freight agent replied that the rate was 75 cents per hundred, or, in the aggregate^ $150; Thereupon the appellee, relying upon the statement of said agent as to the freight rates, ordered the oranges. They were shipped to him, and the Seaboai’d Air Line Railroad Company, the initial carriel", delivered the oranges to appellant, the connecting carrier, at Montgomery, Ala., and appellant, in due course of business, transported the oranges to Greenville, Ala., and there delivered them to the appellee. When the oranges were delivered, the appellee paid to the appellant the above sum of $150 as the freight due on the oranges, and the same was accepted by the appellant as the full amount of such freight.
Two or three days after the oranges had been delivered to appellee and the freight paid, as above stated, it was discovered by appellant that, in quoting, the freight rate to appellee, the general freight agent of appellant had made a mistake of $22.50 against the appellant,, in that the sum of $150 was $22.50 less than the regular tariff rate as filed with the Interstate Commerce Commission from Orlando, Fla., to Greenville, Ala., by
That the appellant’s agent, in quoting the freight rate to appellee as $150 on the oranges, and that the appellant’s agent, in accepting $150 as the freight, made an honest mistake, there is no doubt. There was, as is shown by all the evidence, no intention-, in this transaction, on the part of appellant or of any of its agents, or of the appelleé, to evade or in any way violate any of the provisions of the interstate commerce laws. The tariff rate as filed with the Interstate Commerce Commission by the Seaboard Air Line Railroad Company was, on oranges, 45 cents per box of 80 pounds each,, from Orlando, Fla., to Montgomery, Ala., or a rate of 56% cents per hundred pounds between the two points, and of the appellant from Montgomery to Greenville of 80 cents per hundred pounds. In quoting the rate and in collecting the freight, the appellant, by mistake, computed the freight from Orlando to Montgomery at 45 cents per hundred, instead of at 56% cents, as it should have done, and this made, by a mistake in calculation, the -rate of 75 cents per hundred, instead of 86% cents per hundred, from Orlando to Greenville, and for thifs reason' appellant quoted and received $22.50 less than should have been quoted and received.'That the mistake!
In the case of A. J. Poor v. Chicago, Burlington & Quincy R. R. Co. et al., 12 Interst. Com. R. 418, the Interstate Commerce Commission, through Harlan, commissioner, said: “Stability and equality of rates are more important to commercial interests than reduced rates. It was instability and inequality that were the special evils to be remedied; it was the possibility that one shipper, in one way or another, whether by mistake or otherwise, could, and actually did, get a lower rate than another shipper that led to more stringent legislation. * * * In this respect the published rate has become a protection to shippers and to carriers alike. Regardless of the rate quoted or inserted in a bill of lading, the published rate must be paid by the shipper and actually collected by the carrier. * * * While shippers rely largely upon the rates quoted by freight agents and billing clerks, the law charges them- with knowledge of the lawful rates. And they will not be heard before this Commission to claim the benefit of a lower than the lawful rate, on the ground that some railroad clerk has made a mistake in quoting a lower rate for a particular shipment. To permit shippers to impute negligence to carriers in quoting rates, instead of paying the lawfully published rate, would open a broad and ample way for the payment of rebates and for other unlawful practices, and might, in its practical results, work a repeal of the essential features of this legislation.” — Poor v. C., B. & Q. R. . Co. et. al., 12 Interst. Com. R. 418.
In the case of Southern Ry. Co. v. Harrison, 119 Ala. 539, 24 South. 552, 43 L. R. A. 385, 72 Am. St. Rep. 936, the Supreme Court, through Brickell, C. J., said that a contract for the transportation of an interstate shipment at less than the published rate approved, by the
In the case of Armour Packing Co. v. United States, 209 U. S. 56, 28 Sup. Ct. 428, 52 L. Ed. 681, the Supreme Court of the United States declared that the tariff rate, when fixed and approved by the Interstate Commerce Gommisison and published as required by law, is read into the contract of affreightment, and becomes a part thereof. — Armour Packing Co. v. U. S., 209 U. S. 56, 28 Sup. Ct. 428, 52 L. Ed. 681.
It is evident from the opinions of the Interstate Commission in the above case of Poor v. C., B. & Q. R. R. Co., and of the United States Supreme Court in the above case of Armour Packing Co. v. U. S., that it is the established purpose of the federal government to require common carriers to collect, and shippers or consignees to pay, on all shipments covered by the interstate law the exact amount covering such shipments as is fixed by the schedule of rates filed with and approved by the Interstate Commerce Commission and published as required by law; and that the federal courts will permit no defense to an action instituted by a common carrier engaged in interstate commerce to recover of a shipper or consignee the exact amount of its lawful freight charges, provided such defense presents a possible method by which the terms of the interstate commerce law may be evaded.
It is apparent that if, by reason of the alleged negligence or mistake of an agent of a carrier in furnishing to a shipper a lower rate for an interstate shipment than the rate filed and approved by the Interstate Commerce Commission, the shipper is permitted to pay, and actually pays, such lower and unauthorized rate, and the courts, in an action by such carrier - against such
Of course, the rule that where one, with full knowledge of all the facts, accepts in payment of a debt a less amount than the sum actually due him he will not be. permitted afterwards to claim the balance not paid is familiar. The rule that money voluntarily paid, with full knowledge of all the facts, cannot be recovered back is also familiar, as is that other rule that Avhen an illegal contract is executed, and the parties are in pari'
2. In the present case, as a mathematical calculation will demonstrate, the freight rate quoted and the amount collected, viz., $150, was due to a mistake of appellant’s agent or agents in calculating, from the published schedules, the amount of the freight. As we have already said, the manner in which the mistake occurred is apparent. The agent simply computed the freight on the 250 boxes, aggregating 20,000 pounds at 30 cents per hundred from Montgomery to Greenville, and at 45 cents per hundred from Orlando to Montgomery, overlooking the fact that the rate of 45 cents from Orlando to Montgomery was the rate on oranges in boxes of 80 pounds, instead of in boxes of 100 pounds. While the general rule of law is, as above stated, that when, with full knowledge of the facts, a creditor accepts from his debtor less than the amount due him, he will not afterwards be heard to complain, full knowledge of the facts is one thing, but merely having the means of ascertaining the real facts is an entirely different thing. Having the means of ascertaining the real facts is not tantamount to actual knowledge of them. In the present case the appellant’s agent, acting prob
3. There is nothing in the contention of appellee that the appellant failed to make out its case, because it failed to show that it had “posted” its rates as required' by the interstate commerce law. In the first place, this case, as shown by the remark of the trial judge to appellant’s attorney when the letter from De Funiak was admitted in evidence, was so tried in the court below as to indicate that, if such evidence was deemed necessary or pertinent, it was waived by appellee; and, in the second place, such evidence was not necessary. — Texas, etc., R. Co. v. Cisco Oil Mill, 204 U. S. 450, 27 Sup. Ct. 358, 51 L. Ed. 562.
4. The bill of exceptions recites that at the conclusion of the evidence plaintiff requested the court to give in writing the following charges:
“The court charges the jury, if they believe the evidence, they must find for the plaintiff’; and the court thereupon indorsed upon said charge the word ‘refused.’
“Counsel for defendant then asked the court to give the following charge in writing, to-wit: ‘The court charges the jury that, if they believe the evidence, they will find for the defendant.’ The court thereupon indorsed upon said charge the word ‘given’.”
The propositions announced in Barnewell v. Murrell, 108 Ala. 370, 18 South. 831, and Ala. Construction Co. v. Wagnon Bros., 137 Ala. 390, 34 South. 352, are in perfect accord with the views above expressed.
Under the undisputed facts in this case, the appellant Avas entitled to the general affirmative charge in its behalf.
Beversed and remanded.